Unarmed or Unwell: How Federal Law Infringes Medical Marijuana Users' Second Amendment Rights

• Publication year: 2023

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Griffen Thorne ^*

Abstract: In the wake of the 2022 U.S. Supreme Court case New York State Rifle & Pistol Association, Inc. v. Bruen, federal courts have reached opposite outcomes on whether federal prohibitions on marijuana users' rights to own or possess firearms are constitutional. As a result, there is a high likelihood of a circuit split that results in the overturning of those federal laws. The author discusses Bruen and several other cases at the intersection of drug laws and gun laws.

Federal law prohibits users of controlled substances from owning or possessing firearms. ¹ This decades' old prohibition extends not only to users of "hard" drugs like heroin and cocaine but also to recreational and even medical marijuana users who consumer marijuana under the protection of state law. ² Patients with chronic and debilitating illnesses must therefore make a choice between waiving federal constitutional rights under the Second Amendment and obtaining what could be life-altering medical treatment.

Courts have routinely upheld this prohibition over the prior few decades. ³ But in New York State Rifle & Pistol Association, Inc. v. Bruen, ⁴ the United States Supreme Court simplified the test courts must apply when evaluating infringements on the Second Amendment. Following Bruen, federal courts have reached essentially opposite outcomes on the basic issue of whether the federal government's restrictions infringe the Second Amendment. At the same time, Congress and even state governments have attempted to protect medical marijuana users' rights to own firearms.

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In the wake of Bruen, it appears likely that marijuana user's Second Amendment rights will be restored. This article examines certain cases involving gun rights and medical marijuana, state and even federal legislative attempts to skirt federal gun control laws, and some likely outcomes in the coming years.

Stripping Marijuana Users of Second Amendment Rights

The federal Gun Control Act of 1968 (GCA), ⁵ among other things, rendered unlawful the sale of a firearm to, or receipt of a firearm transmitted in interstate commerce by, any person who was an "unlawful user of or addicted to marihuana . . . ." ⁶

Shortly after the GCA became law, the federal government passed the Controlled Substances Act (CSA), ⁷ which places certain drugs into one of five schedules. "Marihuana" remains to this day on schedule I of the CSA ⁸ —the schedule reserved for the (allegedly) most dangerous drugs. ⁹

Thereafter, relevant provisions of the GCA were amended and targeted the newer categories of controlled substances under the CSA. In 1993, the federal government passed the Brady Handgun Violence Protection Act, ¹⁰ specifically adding a reference to the CSA and categorically denying gun ownership to persons who are "unlawful users of or addicted to any controlled substance . . . ." ¹¹

Today, firearm purchasers must complete a Bureau of Alcohol Tobacco Firearms and Explosives (ATF) Form 4773 in order to purchase a firearm. Form 4773 asks purchasers:

Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?
Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside. ¹²

Form 4773, as well as the above federal laws generally, make no distinction between addicts, medical users, or casual users. Federal regulations attempt to bridge the gap to some degree:

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A person who uses a controlled substance and has lost the power of self-control with reference to the use of a controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. ¹³

In other words, use of marijuana in the distant past is unlikely to render a person ineligible to own or acquire a firearm. But medical marijuana users simply cannot comply with this standard and still own a firearm. If they were to answer "yes" to this question, they would be unable to purchase a firearm. If they were to untruthfully answer "no" to this question, they would have committed a felony offense. ¹⁴

The New Bruen Test for Evaluating Second Amendment Infringements

Much has already been written about the Bruen decision. This article will therefore not address the case substantively. However, to set the stage for the below analysis, it is important to understand the new test that Bruen established for evaluating whether laws infringe the Second Amendment.

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The Bruen test is a straightforward test that asks two questions: first, whether the Second Amendment covers an individual's conduct, and second, whether the government's regulation of that conduct is "consistent with this Nation's historical tradition of firearm regulation." ¹⁵

The Court recognized that historical regulation is not necessarily consistent with modern times, and allowed the government to rely on historical analogues to current regulations, so long as the historical and current regulations are relevantly similar. ¹⁶ Without providing an exhaustive framework for this determination, the Court cited what it believed were two key metrics: "how and why the regulations burden a law-abiding citizen's right to armed self-defense. ¹⁷ Further, "whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are 'central' considerations when engaging in an analogical inquiry." ¹⁸

While Bruen was not a marijuana case, it certainly has shaken things up for the federal government and state governments alike.

Fried v. Garland

Shortly after Bruen was decided, a district court judge in the Northern District of Florida issued an order dismissing a challenge to the relevant federal gun control statutes in Fried v. Garland. ¹⁹ Fried involved a mixed group of...